In re Barnick
{¶ 1} In his brief, appellant, Tim Barnick, (“Barnick“) pro se, appeals the trial court‘s denial of his motions for continuance.1 Finding no merit to the appeal, we affirm.
{¶ 2} In August 2005, Richard Barnick (Tim Barnick‘s father) was declared incompetent by the probate court. Subsequently, Richard Barnick was removed from his home, which he shared with Barnick, and was admitted to a nursing home. The probate cоurt appointed Russell Baron (“Baron“) as independent guardian because the trial court found that Barnick was not providing suitable cаre for his
{¶ 3} In February 2006, Barnick filed a motion to remove Baron as appointed guardian of his father because of conflicts in visitation between Barnick and his father and Baron‘s reluctance to return Richard Barnick to the family home, under the care of Barnick.
{¶ 4} After a hearing on March 15, 2006 with Barnick and Baron present, the magistrate found that Barnick failed to establish the grounds required by law for Baron‘s removal as guardian. Thereforе, on March 23, 2006, the magistrate recommended that the court overrule Barnick‘s motion.
{¶ 5} On April 10, 2006, Barnick filed an “objection letter” to the mаgistrate‘s decision on his motion to remove Baron. On April 18, 2006, Baron filed an application for guardian fees. Both motions were set fоr a hearing on May 17, 2006.
{¶ 6} Meanwhile, Barnick hand-delivered questions to Baron on two occasions. When Barnick received no respоnse from Baron, he delivered his “first set of interrogatories” to Baron on May 15, 2006, and filed a motion for continuance of the May 17 hearing. Thе trial court denied Barnick‘s request, so Barnick filed another motion for continuance, requesting more time because the Longterm Cаre Ombudsman was unable to attend the hearing. The trial court denied this motion as well.
{¶ 8} Barnick now appeals, raising one assignment of error, in which he claims that the trial court erred in failing to grant his motions fоr continuance.2
{¶ 9} The decision whether to grant a continuance rests within the sound discretion of the trial court. State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d 1078. An abuse of discretion requires a finding that the trial court‘s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Moreover, the Ohio Supreme Court in State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 473 N.E.2d 264 declared that:
“Thе term discretion itself involves the idea of choice, of an exercise of the
will, of a determination made between comрeting considerations. In order to have an ‘abuse’ in reaching such determination, the result must be so palpably and grossly violative of fаct and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not thе exercise of reason but rather of passion or bias.”
{¶ 10} In Unger, the Ohio Supreme Court set forth a test that “balances the “*** court‘s right to control its own docket and the public‘s interest in the prompt and efficient dispatch of justice against any potential prejudice” tо the defendant. Id. See, also, In re Kriest (Aug. 6, 1999), Trumbull App. No. 98-T-0093.
{¶ 11} In determining whether a continuance should be granted, a court should consider:
“*** [T]he length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendаnt contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending оn the unique facts of each case.” Unger, supra.
{¶ 12} In the instant case, the trial court set the May 17, 2006 hearing date, to review Barnick‘s objections tо the magistrate‘s decision, on April 12, 2006. Therefore, Barnick had nearly five weeks to prepare for the hearing. Instead, he waited until two days before the hearing date to request a continuance. The trial court denied the motions and proceeded with the hearing, at which it considered Barnick‘s motions and overruled them.
{¶ 14} Therefore, the sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recovеr of appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that а special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
COLLEEN CONWAY COONEY, JUDGE
FRANK D. CELEBREZZE, JR., A.J. and
PATRICIA ANN BLACKMON, J. CONCUR